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The Atlanta Constitution,

Thursday, 2nd October 1913,

PAGE 1, COLUMN 7.

Hearing Is Set

Before Judge

Roan Next

Saturday, But

It Is Believed the

Solicitor

Will Ask

Postponement.

TWO JURORS

ATTACKED

IN RETRIAL

PETITION

Henslee and Johenning

De-

clared Prejudiced"

Object

to Alleged Illegal

Evidence

and to

Demonstrations.

Charging that two members of the jury, Henslee and

Johenning, were biased and prejudiced against the defendant;

that Judge L.S. Roan admitted illegal evidence, prejudicial to the

defendant, and that the popular applause from time to time, in

and outside of the courthouse, influenced the jury and made it

impossible for them to give him a fair trial, attorneys for Leo M.

Frank, convicted of the murder of Mary Phagan, have prepared

their amended motion for a new trial. The hearing is set for

Saturday morning, and, f heard at that time, Judge Roan will

probably preside.

At Attorney Rosser's office Wednesday afternoon, it was

stated that the intentions had been to serve the motion upon

Solicitor General Hugh M. Dorsey at noon Wednesday, but the

motion had not been finished in time. It was stated that the

service would be perfected Wednesday night if possible. At a late

hour Wednesday night the solicitor declared he had not been

served with the motion. It is expected that service will be made

today.

Attorney Leonard Haas, who, with Attorneys Reuben R.

Arnold, Luther Z. Rosser and Herbert Haas, represent the prisoner

sentenced to hang on October 10, will on today serve the solicitor

with a stenographic copy of the entire proceedings of the trial,

including the testimony of the hundreds of witnesses in the trial,

which covered nearly a month.

Formal Motion Some Time Ago.

The formal motion for a new trial for Frank was filed on the

day that he was sentenced. That was in skeleton form, and the

amended motion, which carries the detailed and enlarged

reasons, was the one witch which the solicitor will be served

today night at his home.

There are 135 instances cited as reasons for which the

prisoner should be tried again. The main ones consist in the

charge against the two jurors and the alleged illegal rulings of

Judge Roan. In the motion, Juror Henslee is referred to as J. A.

Henslee, while at the time of the trial his name was given as A.

H. Henslee. This si regarded as a stenographic error. M.

Johenning, the other juror attacked, is also charged with

preformed opinions regarding the guilt of the man on trial.

The motion states that affidavits to prove the prejudice of

the two jurors attacked will be furnished. Affidavits from two

Blakely, Georgia, men are already on file, but in these the two

men denied that Henslee had ever expressed to them partially. It

is understood that the defense has other affidavits by which it

hopes to show partiality.

Admission of testimony in regard to Frank's alleged

lasciviousness, his alleged immoral relations on previous

occasions with various women and the testimony of Jim Conley in

regard to watching for Frank on previous occasions while he is

alleged to have had young women in his office, also objected to.

Erred is Denying Mistrial.

The motion also declares that Judge Roan erred each time

that he refused to declare a mistrial when urged to do so by the

defenses, and also declared that he erred in not rebuking Solicitor

Dorsey and Attorney Frank A. Hooper, for various parts of their

arguments, which the defense asked should be stricken out and

for which the defense claimed they would be rebuked.

The amended motion covers its closely written typewritten

pages and goes into detail on the various points. It is not

regarded as possible that the solicitor can be ready to answer it

by Saturday morning at 10 o'clock when the hearing is to be

taken up. That he will ask for a postponement of several days or a

week is believed to be certain.

Various other objections in addition to the main ones cited

above are also

PAGE 2, COLUMN 1

contained in the motion. A condensed statement of the objections

made is as follows:

The allowing of Newt Lee to testify that Detective John

Black talked to Lee longer as the station house than did

Defendant Frank.

That the court allowed Lee to show that Frank talked to him

a shorter time than he (Frank) did to Attorney Arnold.

That the court allowed Detective Starnes to testify that Lee,

on the morning of his arrest, was quiet, and not unnerved, and

that the solicitor was later allowed to draw conclusions about

Frank's alleged nervous condition when approached by officers.

Many Errors Alleged.

That the court allowed Detective Starnes to swear that

Frank was guarded' tm bis conversation with the officers.

That the court admitted the solicitor's diagram of the

National Pencil factory in which the solicitor had drawn dotted

lines showing his theory of where the girl was killed, and how the

body was disposed of.

That the court permitted Detective Black to testify that in a

conversation several months before with him Frank showed no

nervousness.

That the court permitted it to be shown that Frank

employed Attorneys Rosser and Haas about 3 o'clock on Monday

morning after the murder.

That the court refused to allow Detective Black to tell on

cross-examination that Lee had said that the bloody shirt found in

his home was his own property.

That the court allowed Witness N. V. Darley to testify on the

morning of his arrest Lee was composed.

That the court refused to rule out the testimony made by

Conley as to the previous alleged watching for Frank, and also in

regard to Frank's alleged acts in having young women in his

office.

Meeting Was Blocked.

That the court admitted evidence in regard to Conley's

being taken to the jail to see Frank, and failing to see him, despite

his own wish and that of the officers.

It is cited that the interference was drawn by the solicitor

that Frank had refused to confront his black accuser, and Mr.

Dorsey, in his argument, asserted, It was the first time in the

history of the white race that a white man, charged with crime,

refused to see his accuser, and particularly when that accuser

was a member of the lower race.

That the court allowed Mrs. Arthur White, wife and relative

of the Frank's employees, to tell that she had reported, not to the

police, but to the pencil factory people, that she had seen a negro

lurking in the factory on the day of the murder.

That the court allowing Sheriff C. W. Mangum to tell of

Frank's refusing to confront Conley when the detectives and

policemen brought the negro to the jail to put them face to face.

That the court allowed Dr. H. F Harris to testify in regard to

experiments made with cabbages on patients and also that

medical men must draw conclusions not from an isolated case,

but from the general result of their scientific knowledge.

Dr. Harris' Testimony.

That the court allowed Dr. Harris to testify that from a

microscopic examination of the girl's stomach that he could tell

she had eaten the cabbage and bread within three-quarters of an

hour before she died.

That the court allowed C. B. Dalton to testify that he had

visited the pencil factory and had seen Frank drinking with

women in his office.

That the court allowed Detective Bass Rosser to testify that

he had frequently interviewed Mrs. Arthur White, and that not

until several weeks after she told the pencil factory people did

she tell him that she had seen a negro lurking around the factory

on the day of the murder.

That when the court declined to rule out part of Conley's

testimony relating to Frank's alleged lasciviousness that there

was loud and persistent hand-clapping and other applause in the

courtroom, and that the jury in the anteroom must have heard

this applause, and the court refused to grant a mistrial.

That the court did not clear the courtroom of the crowd,

which contained those filled with passion and prejudice against

Frank, and whose very presence was a menace to the jury.

Reference is here made to the jeering laugh of part of the

crowd when Attorney Arnold commented on part of the solicitor's

remarks and to the fact that Judge Roan did threaten to clear the

courtroom. Other references to applause at various times in the

courtroom is also made.

Cabbage Objected To.

That the court allowed the introduction of certain bottles

containing cooked cabbage which were said to have been

prepared in a similar way to those eaten by the murdered girl and

which were said to have remained in the stomach of certain

parties for thirty to fifty minutes before being pumped out.

That the court allowed Pinkerton Detective Harry Scott to

testify that he got no information from any officials of the National

Pencil company that Conely could write, at the time the negro

was denying this.

That the court allowed Solicitor Dorsey to comment on

Herbert Schiff, a witness for the defense, in a way that reflected

on his integrity.

That the court allowed Miss Hall, a stenographer, to testify

that on the morning of the murder Frank told her over the

telephone that he wanted her to help him, and that he had so

much work to do and it would take him until 6 o'clock.

That the court allowed Solicitor Dorsey to examine Frank

Chambers, a 15-year-old witness, in such a way as to insinuate

that Frank had committed acts of perversion with him.

That the court ruled out the testimony of Mrs. Freeman in

which she told that Lemme Quinn, a factory employee, had come

to the restaurant where she was eating at 11:45 o'clock that

Saturday and told her that he had just left Frank.

Would Bring Witnesses.

That the court allowed Solicitor Dorsey to declare to the

jury that he was not flour-flushing,' but that he was going to

bring witnesses to show Frank had committed immoral acts with

girls.

That the court allowed Sig Montag to testify that the pencil

factory had employed the Pinkertons, but had not yet paid them.

That the court allowed Car Inspector Leach to testify that he

had known of instances where motormen and conductors brought

their cars to the center of town several minutes ahead of time.

That the court allowed the solicitor's frequent references to

Frank's attitude toward women, which is not one of the character

traits involved in a plea of murder, even when the defendant has

put his character at issue.

Examination of Pinkertons.

That the court allowed the solicitor to examine Pinkerton

Detectives Whitfield and McWorth in a manner indicating that the

alleged failure of the Pinkertons to report the finding of a bloody

club to the police was detrimental to Frank; that the court did not

instruct the jury that these detectives were employed by the

National Pencil company and not by Frank and that the defendant

was not bound by what they did.

That the court permitted Irene Jackson to testify to an

alleged visit of Frank's to the dressing room of his female

employees while the said employees were in the room.

That the court allowed Harlee Branch to tell of

accompanying detectives and Conley when the negro went

through at the factory with what was alleged to be a pantomime

of the action of himself and Frank in disposing of the dead girl's

body.

Said Wages were Raised.

That the court allowed E. H. Pickett to testify of certain

admissions he is alleged to have secured from Minola McKnight, in

which she said her wages had been raised by the Selig family.

That the court allowed Misses Maggie Griffith, Myrtis Cato,

Marie Carst, Nellie Petty, May Davis and Estelle Winkle Petty, May

Davis and Estelle Winkle and Mesdames C. D. Donagan. H. R.

Johnson and E. Wallace to testify that they were acquainted with

the general character of Frank in regard to women previous to

April 26, 1913.

That the court allowed L. T. Kendric, a former employee of

the pencil factory, to testify regarding the reliability of the factory

clock.

That the court refused to grant a mistrial after the solicitor's

argument and before the judge's charge to the jury, when the

defense asked it on the grounds of the popular demonstration on

the streets over Solicitor Dorsey.

That the court allowed Attorney Hooper, for the state, to

argue to the jury that the failure of the defense to cross-examine

certain female witnesses was strong evidence of the fact that if

the defense had cross-examined them they would have related

instances of Frank's alleged misconduct with women.

Jurors Are Attacked.

The same objections are made to parts of the solicitor's

arguments to the jury.

That Juror Henslee was not a fair and impartial juror, and

was prejudiced against the defendant when he was elected as a

juror, and had previously formed and fixed an opinion as to the

guilt of the defendant and was biased in favor of the state when

chosen.

Practically the same charges are made against Juror

Johenning, and the motion declares that affidavits proving this will

be furnished to the court.

That the court refused to include in the charge to the jury a

number of points insisted upon by the defense, and particularly in

not leaving it to the jury to say whether or not Conley was an

accomplice, and instructing the jury that if they found that Conley

was an accomplice that it would be necessary to have the

testimony of some other party besides Conley to show Frank's

guilt.

The motion contains long extracts from various portions of

the testimony referred to and cites quotations from legal

decisions in regard to the points at issue. It also gives extracts

from the solicitor's speech, and contends that various remarks of

his when interrupted by Attorney Arnold were illegal and

improper.

Thursday, 2nd October 1913 115 Reasons Given Why Frank Should Get Another Trial
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